In Roswell Park Cancer Institute Corp. v. Sodexo America LLC, 2009 WL 5126984 (4th Dep't 2009), the Appellate Division upheld the lower court's decision that e-mails prepared by a facility management company were subject to the attorney/client privilege and, therefore, not discoverable, even though the e-mails were not prepared by attorneys, sent to attorneys or copied to attorneys. In reaching this decision, the Appellate Court considered evidence that in-house counsel requested high-ranking members of the company's management team to have the company's lower-level employees assemble information for use in his legal analysis concerning the company's potential liability. The Appellate Court also considered in-house counsel's own statements that his involvement constituted legal rather than business advice and the Supreme Court's broad discretion to control discovery.

In Borzilliere v. Jones, 2009 WL 5126588 (4th Dep't 2009), the Appellate Division agreed that, after defendant met its burden, plaintiff failed to raise a triable issue of fact as to whether a serious injury within the meaning of Insurance Law §5102(d) was sustained. While plaintiff submitted a CT-scan report indicating that the plaintiff suffered disc protrusions and/or herniations at multiple levels along with an affidavit and records of his chiropractor demonstrating pain, tenderness and loss of range of motion, the Appellate Court noted that the plaintiff did not begin treatment with his chiropractor until 16 months following the accident and the range of motion tests were performed approximately 19 months after the accident. Plaintiff, thus, failed to submit any evidence that his limited range of motion was contemporaneous with the accident.

In Herdzik v. Chojnacki, 2009 WL 5126349 (4th Dep't 2009), a case where Art Herdzik of our firm represented his nephew, litigation was commenced, on behalf of an underage plaintiff, against property owners who hosted a paintball game and provided ammunition for paintball guns, and parents who provided the gun that fired the injuring shot. In overturning the lower court's denial of plaintiff's motion for summary judgment on negligence, the Appellate Division held that purchasing and then giving a paint ball gun and/or ammunition to an underage child violated Penal Law §265.10(5) and constituted negligence per se. This was so, held the Court, despite the fact that several of the boys brought ammunition that was shared collectively and the parties were unable to identify who brought the paintball that ultimately struck the plaintiff in the eye.

In another paint ball case, the Fourth Department, in Duquin v. Chameli, 2006 WL 5128543 (4th Dep't 2009), overturned the lower court's summary judgment finding in favor of the defendant based on the doctrine of primary assumption of risk. The Appellate Court noted that, to establish their burden, the defendants were required to establish both that the risk of eye injury in a paint ball game was: 1) inherent in the sport of paint ball; and 2) that the plaintiff was aware of that risk. Although the defendants submitted deposition testimony of the plaintiff that "back in 2002," he understood that a face mask or goggles were needed to protect paint ball participants from eye injury, the Appellate Court found that it was unclear from the record whether plaintiff's understanding of the risk pre-dated the accident date of March 8, 2002.

In Aquino v. Higgins, 2009 WL 5126374 (4th Dep't 2009), the Appellate Court held that, although the defendant parents hosted a party where alcohol was consumed by minors, they were not liable to an underage plaintiff who was injured as a result of an alcohol related accident that occurred while he was being driven home by the defendants' minor son. Even though the parents admitted that, at the end of the party, they became aware that underage drinking had occurred, the parents established that they were not negligent by offering evidence that they offered the guests a ride home, did not think any of the guests was intoxicated, instructed their son to go to bed, and were unaware that their son had left the house to drive plaintiff home. The Court stated that, while the parents had a duty to provide adequate supervision for the guests at the party while the guests were under their control, that duty does not extend to an area not within the control of the defendant parents.

Prepared by Tara S. Evans